MADISON – The Wisconsin Supreme Court has struck down Gov. Tony Evers’ order shutting down daily life to limit the spread of coronavirus — marking the first time a statewide order of its kind has been knocked down by a court of last resort.

The state’s highest court sided with Republican lawmakers Wednesday in a decision that curbed the Evers administration’s power to act unilaterally during public health emergencies.

The 4-3 decision was written by four of the court’s conservatives — Chief Justice Patience Roggensack and Justices Rebecca Bradley, Daniel Kelly and Annette Ziegler.

The court’s fifth conservative, Brian Hagedorn, wrote a dissent joined by the court’s two liberals, Ann Walsh Bradley and Rebecca Dallet.

The court issued the decision a month after Kelly lost his seat on the court. He will be replaced in August by Dane County Circuit Judge Jill Karofsky, a liberal who beat him by 10 points in the April 7 election.

The ruling mmediately threw out the administration’s tool to control a disease for which there is no vaccine. It came after Evers had already begun lifting some restrictions because the spread of the virus has slowed for now.

To put any limits in place, the Democratic governor and Republican-controlled Legislature will be forced to work together to deal with the ebbs and flows of the outbreak — something the two sides have rarely been able to achieve before.

With no COVID-19 policies in place, bars, restaurants and concert halls are allowed to reopen — unless local officials implement their own restrictions. That raises the prospect of a patchwork of policies, with rules varying significantly from one county to the next.

GOP leaders offered no immediate response to the decision or indicated whether they wanted to put any limits in place to fight the pandemic. State Sen. Dan Feyen, R-Fond du Lac, contended in a statement that state officials would develop a reopening plan soon and in the mean time citizens should exercise “good old-fashioned common sense and personal responsibility.”

But the Legislature’s top leaders, Assembly Speaker Robin Vos of Rochester and Senate Majority Leader Scott Fitzgerald of Juneau, remained mum about what plan they might try to advance for the state.

In the majority opinion, Roggensack determined Health Services Secretary Andrea Palm should have issued regulations through a process known as rule making, which gives lawmakers veto power over agency policies.

Without legislative review, “an unelected official could create law applicable to all people during the course of COVID-19 and subject people to imprisonment when they disobeyed her order,” the majority wrote.

Other justices saw it differently.

“This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history. And it will be Wisconsinites who pay the price,” Dallet wrote in her dissent.

GOP lawmakers who brought the lawsuit have said the legal challenge was necessary to get a seat at the table where Evers and state health officials make decisions about how to respond to the outbreak, which has killed 418 people in the state in two months.

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The ruling was issued a day after a poll showed the public trusts Evers more than the Republican-led Legislature on when to begin reopening and relaxing restrictions related to the outbreak.

Evers has maintained his administration needs to be nimble and is relying on health experts to guide his decisions. He has said the procedure GOP lawmakers successfully sought will mean the state won’t be able to act quickly.

Hagedorn, who worked as chief legal counsel for former GOP Gov. Scott Walker, wrote in one of the court’s two dissents that the administration did not need permission to order such restrictions.

“In striking down most of Order 28, this court has strayed from its charge and turned this case into something quite different than the case brought to us,” Hagedorn wrote. “To make matters worse, it has failed to provide almost any guidance for what the relevant laws mean, and how our state is to govern through this crisis moving forward. The legislature may have buyer’s remorse for the breadth of discretion it gave to (the Department of Health Services). But those are the laws it drafted; we must read them faithfully whether we like them or not.”

Rebecca Bradley criticized Hagedorn, typically one of her allies, writing that his argument “contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty.”

The majority concluded Evers has broader powers during emergencies, but stressed that those powers have limits.

“If a forest fire breaks out, there is no time for debate. Action is needed. The governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the governor cannot rely on emergency powers indefinitely,” Roggensack wrote for the majority.

Michael Maistelman, an attorney who at times has represented Evers, said the justices had “legislated from the bench to make up their own laws to satisfy their political ends.”

“This action will inevitably lead to more sickness and more death,” he said in a text message. “The court will have blood on their hands and the people of Wisconsin will not forget.”

Wisconsin was one of 43 states to be locked down by its governor and as of Wednesday, it was one of 11 with such restrictions still in place.

At the heart of the lawsuit was a state law governing communicable diseases that says the Department of Health Services “may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics,” and gives it the power to “authorize and implement all emergency measures necessary to control communicable diseases.”

But the majority found Palm also had to follow another state law that requires regulations to be submitted to a legislative committee that can block them.

The first laws providing emergency powers to government officials were crafted in 1887, about 30 years before the 1918 flu pandemic that epidemiologists have said is similar to this year’s coronavirus outbreak.

In 1981, amid the HIV and AIDS epidemic, the state Legislature gave the power to DHS to issue orders — instead of using rulemaking.

Wednesday’s ruling came after a few thousand protested against the governor’s restrictions at rallies across the state, some comparing Evers to a murderous dictator and others complaining the order had nearly ruined their livelihoods.

More than 500,000 people filed for unemployment benefits after Evers ordered the closure of businesses providing what he has defined as non-essential, such as bars, hair salons and tattoo parlors.

But the orders also had broad support from the public. A poll released Tuesday by Marquette University Law School showed 69% of voters surveyed believed Evers’ actions were appropriate, though that support had decreased since March when more than 80% supported the restrictions.

Support and opposition has largely fallen along partisan lines.

Less than an hour after the ruling was released, the Tavern League of Wisconsin told its members they could greet customers again in their bars and urged them to adopt safety guidelines recommended by the state’s economic development agency.

The decision was not a surprise after Evers and his administration came under fire last week by conservative justices during oral arguments.

“Isn’t it the very definition of tyranny for one person to order people to be imprisoned for going to work among other ordinarily lawful activities?” asked Rebecca Bradley, who later questioned whether the administration could use the same power to order people into centers akin to the U.S. government’s treatment of Japanese Americans during World War II.

During discussions over the validity of Wisconsin’s ‘safer at home’ plan, Justice Rebecca Bradley compares it to the Japanese Internment camps of World War II. Milwaukee Journal Sentinel

Evers and his attorney said the lawsuit would upend life-saving measures and needlessly put more residents’ health — and their lives — at risk.

“Everyone understands such an order would be absolutely devastating and extraordinarily unwise,” Assistant Attorney General Colin Roth said during arugments. “If safer-at-home (order) is enjoined with nothing to replace it, and people pour out into the streets, then the disease will spread like wildfire and we’ll be back in a terrible situation with an out-of-control virus with no weapon to fight it — no treatments, no vaccine, nothing.”

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